These Terms and Conditions (the “Terms”) shall govern the sale of all event services and equipment rentals the Catalyst Companies, Inc. (“Catalyst”) offer to their customers (the “Services”). Should you have any questions regarding the application of these Terms or any agreement resulting therefrom, please contact Catalyst at info@thecatalystcompanies.com.
PRICING & QUOTES
The rates for Catalyst’s Services shall be set in a confidential pre-event quote to the customer (the “Quote”). Each Quote shall be governed by these Terms and may be accepted by the customer’s signature or affirmative conduct. These Terms shall further govern any written change orders expanding, reducing or otherwise modifying the Services detailed in an existing Quote (the “Change Order(s)”). Once accepted, each Quote, in conjunction with these Terms and all applicable Change Orders, if any, shall form a complete and binding agreement between the parties, distinct from any Quote-based agreements they have executed in the past or will execute in the future (the “Agreement”). If the parties fail to execute a Quote for a given event, the Services rendered at such event shall be governed by the rates and terms set forth in the parties’ most recent Agreement.
The pricing in a Quote or Change Order may be fixed or estimated. The customer understands estimated prices may increase or decrease based on the needs of the event for which they are issued, and herein agrees to issue payment based on the Services actually rendered and invoiced in accordance with the terms set forth below. All estimated Services shall be billed at the rate(s) specified in the applicable Quote or Change Order or, if no rate is specified, at Catalyst’s standard rate for the Service(s) in question. If an estimated price is based upon Services rendered by a third-party, such Services shall be billed at the third-party’s rates plus any markup identified in the Quote or Change Order. In the event of a conflict, the specific price set in a Quote or Change Order shall prevail over Catalyst’s standard rate(s), and the most recent Quote or Change Order shall prevail over all documents that precede it.
DEPOSITS & PAYMENTS
All Quotes are subject to a prepaid cash deposit requirement equal to 60% of a Quote’s total value due when a customer signs or otherwise accepts the Quote (the “Deposit”). The Deposit shall be first applied to cover equipment-related repairs and damages, if any, then to any outstanding penalties, interest or fees and, finally, to cover the principal balance on a customer’s account. A Deposit given for one event or Agreement may be applied to cover the damages, fees, penalties or payments associated with another event or Agreement so long as the parties are identical. The balance of each Quote shall be due in full when Catalyst or its agents first arrive at the venue to set up for the event described in the Quote (the “Load In Payment”). When the Services in question are rental only, the applicable rental fee shall be due in full before the rental equipment ships to the customer.
Catalyst shall have no obligation to prepare for an event unless and until the Deposit is paid in full and shall further have no obligation to set up or provide any Services whatsoever unless and until the Load In Payment is made and the applicable Quote is fully paid for. Should Catalyst choose to prepare or provide Services before the Deposit or Load In Payments are paid, Catalyst’s preparations or rendering of Services shall not constitute a waiver of any unpaid sums or bind Catalyst to provide Services beyond those it elects to provide. Consistent with the limitations set forth below, Catalyst shall not be responsible for and shall be held harmless against any damages arising out of a customer’s failure to pay the Deposit in a timely fashion.
POST-EVENT INVOICING
After an event, Catalyst shall provide each customer with an invoice itemizing the date, rate and quantity of the Services rendered at the event (the “Invoice”). Unless otherwise specified in the Invoice, payment shall be due no later than 30 calendar days after the Invoice is issued. Late payments shall be subject to a finance charge of 1.5% per month or 18% per annum. All credit card payments shall be subject to a convenience fee equal to 4% of the amount paid. Any dishonored checks shall be subject to a one-time fee of $25.00 plus 5% of the check’s value.
Catalyst may, from time to time, provide a customer with a trade discount as a courtesy for established or continuing business. All trade discounts shall be conditioned upon timely payment and shall be void on the first day a payment becomes delinquent.
Each party shall be responsible for determining and paying their own taxes, except Catalyst may charge its customers for any sales or local service taxes it is required to pay or otherwise withhold.
MULTI-EVENT PRICING
A customer may be given a bulk discount, expressed as a percentage-based reduction on Catalyst’s standard pricing (a “Bulk Discount”), for agreeing to hire Catalyst for multiple events within a specific period. The value of a Bulk Discount, the number of events associated with it, and the specific period in which the events are to be held shall all be itemized in the Quote for the first event in the series, which shall be known as the “Initial Event.” The Bulk Discount in the Initial Event Quote shall thereafter apply to all subsequent events in the series provided the total dollar value of each subsequent event is equal to or greater than the dollar value of the Initial Event and held within the relevant time period. If the dollar value for any subsequent event in the series falls below the dollar value of the Initial Event, the customer shall be responsible for paying the difference and, if a subsequent event is itemized in the Initial Event Quote but never scheduled, the Bulk Discount shall become void and the customer shall be responsible for a liquidated damages penalty equal to the money saved by the Bulk Discount’s application to all previous events in the series. If any Bulk Discount event is scheduled but cancelled, the cancellation shall be subject to the cancelation terms set forth below. No penalty shall apply to series events that are not scheduled or otherwise cancelled because of an act of God or similar occurrence within the ambit of the force majeure terms set forth below, provided the series event is rescheduled no later than 12 months and actually held no later than 24 months after the Bulk Discount period ends.
CANCELLATIONS
A customer may cancel all or part of the Services itemized in a Quote or Change Order. Cancellations received more than 30 days before the cancelled Services are scheduled to be rendered shall be subject to no penalty. All other cancellations shall be subject to a cancellation fee equal to 25% of the price quoted for each Service canceled. The cancellation fee shall increase to 50% if the cancellation is received less than seven days before the Services are scheduled, and 100% if the cancellation is received within the 48- hour period immediately before they are to be provided. The foregoing cancellation fees are reasonably based on the damages Catalyst will experience in the event of a cancellation, which may be difficult to otherwise ascertain. The parties herein explicitly agree such fees represent fair compensation for the time, expenses and opportunity costs Catalyst will incur in the event of a cancellation and are thus not a penalty.
EQUIPMENT STORAGE, SHIPMENT & DAMAGE
Each customer shall be responsible for any equipment they rent from Catalyst and shall pay any costs necessary to repair or replace such equipment if it is damaged or lost while in the customer’s possession.
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The customer shall be considered “in possession” of Catalyst’s equipment from the moment it leaves Catalyst’s facilities to the moment it returns. The customer shall be responsible for acquiring any insurance necessary to protect Catalyst’s equipment while it is in transit and shall ensure such insurance is at least equal to the value of the equipment being rented. If Catalyst arranges for shipping, Catalyst shall obtain reasonable insurance and bill the associated costs, along with any shipping charges, to the customer. Catalyst’s decision to ship its equipment shall not alter the “possession” terms described above. The customer shall be solely responsible for and bear all risks of loss or damage to Catalyst’s equipment whenever such equipment is being shipped or transported regardless of whether such loss or damage is caused by the customer, the customer’s agent, the shipper or a third-party.
When Services are provided by Catalyst’s technicians, the customer shall be solely responsible for the security of any facilities at which the Services are rendered and shall be liable for the repair or replacement costs associated with any equipment or other Catalyst-owned items that are damaged, lost or stolen during an event, or while they are being stored for an event, except the customer shall not be responsible for any loss or damage caused by Catalyst’s negligence. In addition to the repair and replacement costs identified above, the customer shall be responsible for any lost revenues accrued while Catalyst’s equipment is being repaired or replaced in accordance with these Terms. Any charges arising under this Section shall be first deducted against the Deposit and then invoiced to the customer.
INTELLECTUAL PROPERTY
For the lifetime of any Agreement arising under these Terms, the parties grant each other a limited, non- exclusive, royalty free, non-transferable license to use their respective trademarks, tradenames and logos in and on any print or electronic materials concerning the event at which the Services will be rendered. Each party may further use the other party’s tradename and logo on their website or in their corporate literature for the express and limited purpose of noting the affiliation created by these Terms or any Agreement arising hereunder. All materials licensed pursuant to this Subsection shall be removed from the parties’ websites and corporate materials upon request provided no Agreement arising under these Terms remains pending. All relevant materials shall be removed no later than 30 days after a party receives a proper request for removal. A failure to effect a timely removal shall result in an assessment of $100 per day, not to exceed $5,000 per violation, in addition to any damages or rights conferred by federal or state law. The parties agree the fees described in this Subsection are reasonable in light of the incalculable damages each party may experience and are not an impermissible penalty.
Catalyst, its agents, employees, contractors and subcontractors further retain all copyrights to any materials created in connection with or in furtherance of these Terms or any Agreement created hereunder including any compositions, blueprints, depictions, diagrams, images, layouts, renderings, reproductions, transcriptions other copyrightable works they may create while rendering the Services or performing any activity related thereto. For the life of any Agreement created hereunder, Catalyst shall extend to each customer a limited, non-exclusive, royalty free, non-transferable license to use any copyrightable material owned by Catalyst and necessary to complete the object of the parties’ Agreement. Unless the parties specify otherwise, such license shall expire no later than 10 days after the Services described in a given Agreement are fully performed. Nothing in these Terms shall be construed to provide the customer with any ownership rights whatsoever. All rights conveyed to the customer shall be limited to those identified in the licenses described above. Catalyst does not own and does not purport to convey any interest in the copyrights of its contractors and subcontractors.
Catalyst’s employees and contractors retain all rights in their individual likenesses and nothing in these Terms or any Agreement arising hereunder shall be construed to authorize the customer to use any individual likeness for any purpose without the individual’s express written consent.
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LIMITATIONS ON LIABILITY
IN NO EVENT SHALL CATALYST BE LIABLE TO A CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OR AN AGREEMENT FORMED HEREUNDER, WHETHER OR NOT CATALYST HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. CATALYST’S SOLE AND EXCLUSIVE MAXIMUM LIABILITY FOR ANY LEGAL CLAIM ASSOCIATED WITH AN AGREEMENT ARISING HEREUNDER SHALL BE A REFUND OF THE AMOUNTS PAID FOR THE SERVICES SOLD OR OFFERED PURSUANT TO SUCH AGREEMENT, REGARDLESS OF WHETHER THE CUSTOMER’S CLAIM SOUNDS IN CONTRACT, TORT, LAW OR EQUITY. BY ACCEPTING A QUOTE OR CHANGE ORDER AND ENTERING AN AGREEMENT DESCRIBED HEREIN, OR OTHERWISE CONSENTING TO THESE TERMS, EACH CUSTOMER KNOWINGLY WAIVES ANY AND ALL CLAIMS AND DAMAGES PRECLUDED BY THE FOREGOING LIMITATIONS INCLUDING, BUT NOT LIMITED TO, ALL CLAIMS ASSOCIATED WITH PERSONAL INJURIES (INCLUDING ANY CLAIMS BASED IN PRODUCT OR STRICT LIABILITY), LOST REVENUE AND PROFITS, LOSS OF TECHNOLOGY, LOSS OF RIGHTS OF SERVICES, UNFAIR COMPETITION AND COMMERCIAL LOSSES OF ANY KIND.
NOTHING IN THESE TERMS OR AN AGREEMENT ARISING HEREUNDER SHALL BE CONSTRUED TO IMPLY A WARRANTY OF ANY KIND. CATALYST OFFERS NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BY ACCEPTING A QUOTE OR CHANGE ORDER, AND ENTERING AN AGREEMENT DESCRIBED HEREIN, OR OTHERWISE CONSENTING TO THESE TERMS, THE CUSTOMER ACCEPTS THESE TERMS IN LIU OF ALL OTHER WARRANTIES OR GUARANTIES WHETHER EXPRESSED OR IMPLIED, OR IN LAW OR FACT.
CONFIDENTIALITY
All confidential and proprietary information transmitted by Catalyst to its customers, including any and all price information, trade secrets and other information of a protected nature, whether disclosed orally or in writing (the “Confidential Information”), shall be kept confidential and shall not be disclosed to Catalyst’s competitors or any third-parties without Catalyst’s express written consent unless the disclosure is necessary to enforce these Terms, any Agreement arising hereunder, or to otherwise comply with a valid legal request, such as a subpoena, but then only to extent necessary to uphold these Terms or comply with the law. Such Confidential Information shall be handled by each customer with the same care as the customer would exercise in handling their own Confidential Information, but not less than reasonable care under the circumstances. In the event a customer is required to disclose any Confidential Information governed by these Terms, the customer shall provide Catalyst with reasonable notice before the disclosure is made and shall further take all reasonable steps to ensure the disclosure is no broader than necessary by, among other things, withholding patently irrelevant materials and seeking a protective order or requiring the execution of a confidentiality agreement before disclosing all other materials.
INDEMNIFICATION
Each customer represents the Services do not: a.) in any way defame, violate or infringe on the intellectual property rights of a third-party, b.) interfere with the civil or privacy rights of any party whatsoever, and c.) constitute an obscenity or violation of any law. Each customer further warrants Catalyst’s provision of the Services will not violate the terms of any agreement or contract to which the customer is a party.
Each customer agrees to indemnify Catalyst and hold Catalyst and its agents harmless against any third- party claims, damages, judgments, losses and costs (including any reasonable attorney’s fees) whatsoever
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arising out of: a.) the customer’s breach of any representation or term contained herein; b.) claims for copyright, patent or other intellectual property infringement including any claims for royalties or license- related fees; and c.) personal injuries or property damage sustained at the event where the Services are rendered. The indemnification requirements set forth in this Section shall not apply to any claims, damages or losses arising out of the willful or reckless conduct of Catalyst or its agents, but only to the extent Catalyst or its agents are found responsible for the damages or losses in question. All amounts not attributable to Catalyst’s conduct shall remain subject to indemnification.
INSURANCE
Each customer shall, at customer’s expense, maintain commercial general liability insurance which includes coverage for independent contractors and specifically refers to any Agreement arising hereunder and the hold harmless terms established herein. Such insurance shall name Catalyst as an additional insured and designate the customer’s insurance policy as the primary insurance policy, which must be exhausted before an obligation arises under Catalyst’s insurance. Such insurance shall remain in effect during the life of any Agreement arising under these Terms and shall include the following coverages: broad form contractual liability, personal injury liability, completed operations and product liability. Such general liability insurance shall provide general aggregate limits not less than $2,000,000, personal injury and advertising injury of not less than $1,000,000 and per occurrence limits of no less than $1,000,000. Each customer shall maintain a worker’s compensation/employer’s liability insurance with minimum limits of $1,000,000.
All insurance maintained pursuant to this Section shall contain a waiver of subrogation against Catalyst. Before the provision of Services pursuant to any Agreement arising under these Terms, each customer will provide Catalyst with a certificate of insurance and applicable endorsements confirming each of the coverages specified above. A failure to produce the insurance certificate identified herein shall, at Catalyst’s sole discretion, constitute grounds for withholding all or a portion of the Services until an adequate certificate is produced or cancelling the applicable Agreement.
DISPUTES & APPLICABLE LAW
These Terms and any Agreements arising from them shall be governed by and construed in accordance with the laws of Colorado, without respect to its conflict-of-laws principles. Any dispute arising out of or in any way related to these Terms, or an Agreement arising hereunder, shall be resolved by submitting the matter to binding arbitration before the American Arbitration Association (the “AAA”) in Denver, Colorado. Any arbitration submitted pursuant to these Terms shall be presided over by a single arbitrator and conducted in accordance with the AAA’s Rules of Arbitration in effect at the time of filing. The arbitrator’s decision shall be binding and enforced as a final judgment in accordance with Colorado law. The parties hereby consent to the vesting of jurisdiction and venue in accordance with this Section, and herein irrevocably waive any and all objections they may have to the same. The prevailing party in any dispute shall be entitled to a reimbursement of its arbitration and court costs, if any, and any enforcement- related expenses incurred in connection with the dispute in question including, but not limited to, reasonable attorney’s fees and costs.
The prevailing Party in any dispute shall be entitled to a reimbursement for all of its arbitration and court costs, if any, and any enforcement-related expenses including, but not limited to, its reasonable attorney’s fees. The Parties’ right to obtain their reasonable attorney’s fees and costs shall apply to any post-award or post-judgment proceedings including any appeals and enforcement actions. In the event a final judgment is entered, the judgment holder shall have an independent contractual right to obtain an award for all reasonable attorney’s fees and costs incurred during their efforts to enforce and collect on said judgment, and such right shall not extinguish until the underlying judgment and any awards related to it are fully satisfied.
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TIME FOR FILING
Any arbitration filed pursuant to these Terms must be commenced within one year of the date the party asserting the claim knew or should have known of the act, omission, or default giving rise to the claim in question; there shall be no right to any remedy for a claim filed outside of this period. If applicable law prohibits a one-year limitation, all claims must be asserted within the shortest period permitted under applicable law.
FORCE MAJEURE
Neither party shall be responsible for any delays or failures arising out of causes beyond their control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, severe weather, and acts or omissions of subcontractors or third-parties.
EQUIPMENT FAILURE
Catalyst maintains its equipment in accordance with the manufacturer’s specifications and industry practice. Catalyst does not, however, warrant or guarantee the equipment or Services will be free of defect, malfunction or operator error. If a piece of equipment malfunctions or does not operate properly during an event for any reason whatsoever, the customer shall immediately notify a Catalyst representative. Catalyst will attempt to remedy the problem as quickly as possible. Consistent with the limitations set forth above, Catalyst shall not be responsible for any costs, damages, losses or other injuries sustained as a result of an equipment malfunction or failure. In the event of a complete equipment failure, the customer’s sole and exclusive remedy shall be a refund of any amounts paid toward the Service or Services affected by the failure.
LABOR BILLING POLICY
Catalyst’s technicians and agents shall be entitled to a location based per diem for all out-of-town projects, regardless of any meals offered by the customer. Catalyst’s technicians and agents shall further be entitled to a single one-hour meal break per shift, which may be taken off site at their election. If taken, such break shall be taken in an indivisible hour allotment and shall not be compensated.
Unless local labor laws require otherwise, overtime is billed at 1.5 times the quoted rate and shall apply to any shift in excess of 10 consecutive hours, excluding a meal break. A double time rate shall be charged after 16 consecutive hours and for any time worked between midnight and 5:00 a.m. If a technician gets less than an eight-hour break between shifts, the next shift shall be considered an extension of the previous shift and billed as overtime or double time depending on the hours worked. If a technician gets less than four hours between shifts, the time will be billed straight through.
Customer provided hotel accommodations shall be required for any events ending between Midnight and 6:00 a.m.
Holidays include New Year’s Day, Memorial Day, the Fourth of July, Labor Day, Thanksgiving, and Christmas, and shall be billed as overtime with double time commencing at 10 hours, excluding a meal break.
Travel days are billed for travel to an event. A travel day is considered one day of 10 hours. Half days of five hours may apply when only regional travel is required. All air travel to an event begins two hours before the flight and ends after the technician or agent arrives on-site and completes their first shift. Return
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air travel begins two hours before the flight and ends one hour after the technician or agent arrives at their final destination. All time attributable to delays or layovers shall be billable to the customer regardless of whether Catalyst’s technician or agent is compensated by the airline. The customer shall not, however, be responsible for any delay-related lodging if such lodging is paid for by the airline or another third-party. Any ground transportation, tolls, tips and other incidental costs shall be billable to the customer. All hours begin and end in accordance with the time zone from which the trip originates and shall not be enlarged or reduced because of a change in time zones.
NON-SOLICITATION
Each customer acknowledges Catalyst has made an investment in training its employees and agrees not to solicit Catalyst’s employees for employment without Catalyst’s express written consent for a period of one year after the last day the employee provides the customer with Services. In the event a customer hires an employee within the prohibited period, the customer agrees to pay Catalyst a one-time fee equal to 10% of the employee’s salary during the employee’s first year with the customer. The parties agree such fee represents a fair reimbursement of the costs Catalyst incurred in training the employee, which may be difficult to quantify after the fact, and is not a penalty.
MISCELLANEOUS
Nothing in these Terms, or any Agreement resulting from them, shall be construed to create a partnership, joint venture or other agency relationship between Catalyst and its customers.
A customer may not assign any rights conferred hereunder without Catalyst’s express written consent. Unless otherwise specified in writing, Catalyst shall have the right to subcontract and assign all or any portion of its rights hereunder without prior notice to the customer. The rights and obligations set forth in these Terms, or any Agreement created pursuant to them, shall inure for the benefit of each party and, to the extent allowed herein, their respective representatives, successors and assigns.
The customer shall be exclusively responsible for obtaining any permits or permissions necessary to hold the event at which the Services are rendered, and shall indemnify Catalyst against any fines or fees that result out of their failure to do so.
Each individual signing a Quote or Change Order represents they have authority to bind the customer to these Terms and any Agreement that may result from their signature.
Each Quote-based Agreement arising from these Terms, along with any relevant Change Orders, shall constitute a complete and exclusive agreement between Catalyst and its customer, and shall supersede all prior or contemporaneous agreements, communications or understandings between the parties, whether written or oral, regarding the same subject matter.
Any delay in enforcing these Terms or any Agreement arising from them shall not be deemed a waiver of future enforcement. No waiver or amendment respecting these Terms, or an Agreement arising hereunder, shall be enforceable unless it is in writing, and a written waiver shall only be effective for the subject matter it describes. All remedies arising under or in connection with these Terms shall be cumulative and not exclusive and may be exercised concurrently or separately.
Should any part or portion of these Terms or any Agreement be deemed invalid, such part or portion shall be revised in a manner that renders such part or portion enforceable to the fullest extent permitted under applicable law. If any part or portion cannot be revised and is stricken, all remaining parts or portions shall
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continue in full force and effect as if these Terms, or any Agreement resulting from them, had been written without the invalid part or portion.